Procedure For Forwarding The Case File To The Competent Court Following A Decision Of Lack Of Jurisdiction
Supreme Court of Appeals, General Assembly of Civil Law
2018/502 E.
2018/1049 K.
COURT: Civil Court of First Instance
Following the trial concerning the case of “prevention of trespass, demolition, and compensation for damage” between the parties; Upon the request of the attorneys for the plaintiff and defendant to review the decision partially accepting the case, dated 18.09.2012 and numbered 201/246 E., 2012/239 K., issued by the Ankara West 3rd Civil Court of First Instance, the decision was first approved by the 1st Chamber of the Supreme Court of Appeals. and upon the defendant’s attorney’s request for correction of the decision, the request was accepted, the confirmation decision was revoked, and with the decision dated December 9, 2013, numbered 2013/13861 E., 2013/17433 K.:
“…The case concerns the prevention of encroachment on real estate, demolition, and compensation claims.
The decision rendered by the court partially accepting the case was appealed by the parties and approved by the Chamber, and the defendant requested a correction of the decision.
According to the file contents and the evidence gathered; the case was filed with the Ankara 3rd Civil Court of First Instance with a petition dated 11.01.2011, and the decision of lack of jurisdiction issued by the said court became final on 26.05.2011 without being appealed.
As is known, according to Article 20 of the Code of Civil Procedure No. 6100 (HMK), the court that issues a decision of lack of jurisdiction or lack of authority shall only decide to send the case file to the competent or authorized court. It cannot send the case file to the competent or authorized court on its own initiative (ex officio). In order for the case file to be sent to the competent or authorized court and for the case to continue in the competent or authorized court, one of the parties must apply to the court that issued the decision of lack of jurisdiction or lack of authority within two weeks of the decision becoming final and have the decision served.
This two-week period is time-barring in nature and is considered ex officio by the court.
In the present case, although the decision on lack of jurisdiction became final on May 26, 2011, it is seen that the Ankara 3rd Civil Court of First Instance sent the file ex officio to the competent Sincan Civil Court of First Instance with its letter dated May 27, 2011.
Given this situation, considering Article 20/1 of the Code of Civil Procedure, it should have been decided that the case was deemed not to have been filed, and it was not correct to rule on the merits of the case…”
The case was overturned on these grounds and returned to the court, and after a new trial, the court upheld its previous decision.
DECISION OF THE GENERAL ASSEMBLY OF THE COURT OF CASSATION
After the General Assembly of the Court of Cassation reviewed the case and determined that the appeal against the decision to uphold the previous ruling was filed within the time limit, and after reading the documents in the file, the following decision was reached:
The case concerns the prevention of encroachment on immovable property, demolition, and compensation for unlawful use.
The plaintiff’s attorney claimed that a part of the immovable property owned by his client was being used as a service area by the defendant without permission and requested a decision to prevent the unlawful seizure, demolition, and determination and collection of the damages suffered by the plaintiff.
The defendant’s attorney raised an objection to jurisdiction, stating that the property was located in Etimesgut and therefore the Sincan Courts had jurisdiction.
The Ankara 3rd Civil Court of First Instance, where the case was filed, ruled that the Sincan Courts, where the immovable property was located, had jurisdiction. Upon the decision becoming final without appeal, the file was sent to the competent court. As a result of the trial held at the Sincan 3rd Civil Court of First Instance, the case was partially accepted.
Upon the parties’ attorneys filing an appeal, the decision was initially upheld by the Special Chamber. However, upon the defendant’s attorney seeking a correction of the decision, the affirmation was reversed and the decision was overturned based on the grounds stated in the heading section above.
The Local Court ruled that the provisions of the Code of Civil Procedure No. 1086, which were in force on the date the decision of lack of jurisdiction became final, were the provisions of law applicable to the case, and that, according to Article 193 of the Code of Civil Procedure, that, as a rule, an application to the competent (or incompetent) court for the file to be sent to the competent court following a decision of lack of jurisdiction should be made by means of a petition, but no specific form is required for the application petition, and that it is necessary and sufficient to apply to the competent (or incompetent) court within ten days and pay the notification costs to be made to the opposing party. It is not a requirement that the notification be made within this ten-day period, and a delay does not necessitate that the case be deemed not to have been filed. In the specific case, the plaintiff applied to the court within the statutory ten-day period, paid the summons notification fee, and fulfilled the requirements of the legal regulation, and therefore a decision to resist was issued.
The decision to uphold the ruling was appealed by the attorneys for both the plaintiff and the defendant.
Dispute brought before the General Assembly of the Court of Appeals through appeal: whether it is mandatory to file a petition in order to transfer the case file to the competent court upon the finalization of the decision of lack of jurisdiction, whether the payment of the notification fee is sufficient, and, depending on the outcome, whether the plaintiff’s attorney requested the transfer of the case file to the competent court within the time limit and whether the conditions for the case to be deemed unfiled have been met.
It should be noted that the case at hand was filed on January 12, 2011, when the Code of Civil Procedure No. 1086 (HUMK) was in force, and the Code of Civil Procedure No. 6100 (HMK) entered into force while the case was pending.
Since the provisions of both laws contain different regulations regarding the procedures to be followed in order to continue the trial in the competent or authorized court upon the issuance of a decision of lack of jurisdiction or lack of authority, it is necessary to first determine which law’s provisions should be applied to the case in order to resolve the dispute.
As is well known, the fundamental principle applicable in procedural law is that the provisions of the law relating to proceedings enter into force immediately. The reason for adopting this principle is that procedural provisions are closely related to public order.
Another issue to be considered in the temporal application of procedural rules, along with the rule of immediate applicability, is whether the relevant procedural action has been completed when the new procedural rule enters into force. This is because if a procedural action has been completed and the new rule enters into force, the completed action remains valid. Conversely, if a procedural action has not yet been completed, the new law will, as a rule, enter into force immediately.
Indeed, Article 448 of the Civil Procedure Code No. 6100, which entered into force on October 1, 2011, and is titled “Application in Terms of Time,” contains the provision that
“The provisions of this Law shall apply immediately, provided that they do not affect completed proceedings.”
Therefore, in order to determine which provisions apply to a specific dispute, it is also necessary to consider whether the procedure in question constitutes a “completed procedural act.”
It should be noted that a lawsuit consists of various procedural acts and stages, beginning with the filing of the complaint with the court and continuing until it is concluded with a decision (or judgment). Each procedural step during the trial must be considered and evaluated separately. It is not possible to evaluate a case as a whole and say whether the new law will be effective in this regard. If a procedural step and segment taken during the trial has been completed, the new law will no longer be effective for that procedural step and therefore will not be applied.
If a procedural action is initiated during the trial and completed before a new procedural rule comes into force, the action in question retains its validity. In other words, completed procedural actions are not affected by the new procedural provision (or law) that comes into force.
Considering the specific case within the scope of all these explanations, the case was filed at the Ankara 3rd Civil Court of First Instance during the period governed by HUMK No. 1086, and the court ruled on 07.04.2011, under case number 2011/17 E., 2011/127 K., that it lacked jurisdiction, that the decision was final, and that the file should be sent to the competent court upon request. The aforementioned decision was served to the parties’ attorneys and became final on May 26, 2011, without being appealed. Therefore, the period for performing the procedural action subject to the dispute expired under the then-effective Code of Civil Procedure No. 1086, before the Code of Civil Procedure No. 6100 entered into force. Thus, it is clear that the provisions of the Code of Civil Procedure (HUMK) are the applicable legal provisions for resolving the dispute.
Article 27 of the Code of Civil Procedure No. 1086 states: “If the court decides to reject the petition because it is not competent or authorized, it shall send the petition and the case file to the court to which it belongs, and no new fee shall be charged.”
Article 193 of the Code of Civil Procedure also states:
“The plaintiff must prepare and submit a new petition in place of the petition that has been decided to be annulled.
Upon a decision of lack of jurisdiction or lack of authority, the plaintiff must have the opposing party served with notice in the competent or authorized court.
In both cases, a new petition must be submitted or a new summons must be served within ten days from the date the decision becomes final.
Otherwise, the case shall be deemed not to have been filed. The separate provisions specified in the law are reserved.”
Pursuant to the provisions of the aforementioned article, the court issuing a decision of lack of jurisdiction shall only decide in its decision of lack of jurisdiction to “send the case file to the competent court upon request.” It cannot send the case file to the competent court on its own initiative. In order for the case file to be sent to the competent court and for the case to continue in the competent court, the plaintiff must apply to the competent (or the court that issued the decision of lack of jurisdiction) court with a petition within ten days from the date on which the decision of lack of jurisdiction becomes final, or must serve the defendant with a summons. Otherwise, the case shall be deemed not to have been filed.
The period for applying to the competent or authorized court is ten days, and this period is subject to a statute of limitations. Therefore, the court must take this into account on its own initiative.
The application to the competent (or incompetent) court is made by means of a petition. However, the Code of Civil Procedure does not prescribe a specific form for this petition. This petition is not a statement of claim; rather, it requests that the necessary procedures be taken to ensure that the case is heard by the competent court.
It is necessary and sufficient to apply to the competent (or incompetent) court within the aforementioned ten-day application period and pay the notification costs to be made to the opposing party and, if any, the file transfer costs.
The plaintiff may also file their application before the decision on lack of jurisdiction becomes final, i.e., before the ten-day application period has begun, and this application is also valid. Likewise, there is no legal provision preventing this.
As stated above, if an application is not made to the competent (or the court that issued the lack of jurisdiction decision) court within ten days of the finalization of the lack of jurisdiction decision, or if a summons is not issued, the case shall be deemed not to have been filed.
When the specific dispute is evaluated in light of these explanations; the decision on lack of jurisdiction issued by the Ankara 3rd Civil Court of First Instance on 07.04.2011, numbered 2011/17 E., 2011/127 K., became final on 26.05.2011, and the aforementioned court sent the file to the competent Sincan Civil Court of First Instance with its letter dated 27.05. 2011, and that although the plaintiff’s attorney’s petition requesting that the file be sent to the competent court is not found in the case file, it is understood from the explanation attached to the transfer letter that the plaintiff paid the necessary notification expenses to have the notification served on the opposing party at the competent court. In this case, it is clear that the procedural action envisaged in Article 193 of the Code of Civil Procedure was carried out within the ten-day period for the lapse of rights and that the conditions for the case to be deemed not filed did not arise.
Therefore, the decision to uphold the case, which refers to the above-mentioned issues and accepts that the conditions for the case to be deemed not filed have not been met in accordance with Article 193/final of the Code of Civil Procedure, is appropriate.
However, since the other appeals regarding the merits of the case were not examined by the Special Chamber based on the grounds for reversal, the file must be sent to the Special Chamber for examination in this regard.
CONCLUSION: For the reasons explained above, the resistance is appropriate, and the file shall be sent to the 8th CIVIL CHAMBER for the examination of the appellants’ and respondents’ attorneys’ appeals regarding the merits of the case. The decision was made unanimously on 09.05.2018, with the right to appeal within fifteen days from the date of notification of the decision.